Queensland Consolidated Acts

WORK HEALTH AND SAFETY ACT 2011 - SECT 231

231 Procedure if prosecution is not brought

(1) Subsection (1A) applies if—

(a) a person (the
"applicant" ) reasonably considers—

(i) that an act or omission constitutes a category 1 offence or category 2 offence; or

(ii) that an act or omission constitutes an offence under part 2A ; or

(iii) from a coronial report or the proceedings at a coronial inquiry or inquest that an act or omission constitutes a category 1 or category 2 offence; and

(b) no prosecution has been brought in relation to the act or omission.

(1A) The applicant may make a written request to the WHS prosecutor that a prosecution be brought in relation to the act or omission.

(1B) However, the request may only be made if—

(a) if subsection (1) (a) (i) applies—it has been at least 6 months but not more than 18 months since the act or omission happened; or

(b) if subsection (1) (a) (ii) applies—it has been at least 6 months since the act or omission happened; or

(c) if subsection (1) (a) (iii) applies—it has been not more than 6 months since the report was made or the inquiry or inquest ended.

(2) Within 3 months after the WHS prosecutor receives a request under subsection (1A) the WHS prosecutor must—

(a) advise the applicant, in writing—

(i) whether the investigation is complete; and

(ii) if the investigation is complete, whether a prosecution has been or will be brought or give reasons why a prosecution will not be brought; and

(b) advise the person who the applicant believes committed the offence of the application and of the matters set out in paragraph (a) .

(2A) If, under subsection (2) (a) (i) , the WHS prosecutor advises the applicant that the investigation is not complete—

(a) the regulator must give the applicant a written update about the investigation at least every 3 months until the investigation is complete; and

(b) when the investigation is complete, the WHS prosecutor must—

(i) advise the applicant, in writing, whether a prosecution will be brought or give reasons a prosecution will not be brought; and

(ii) advise the person who the applicant believes committed the offence about the request and the matters mentioned in subparagraph (i) .

(3) If the WHS prosecutor advises the applicant that a prosecution for a category 1 or category 2 offence or an offence against part 2A will not be brought, the WHS prosecutor must—

(a) advise the applicant that the applicant may ask the WHS prosecutor to refer the matter to the director of public prosecutions for consideration; and

(b) if the applicant makes a written request to the WHS prosecutor to do so, refer the matter to the director of public prosecutions within 1 month of the request.

(4) The director of public prosecutions must consider the matter and advise (in writing) the WHS prosecutor within 1 month as to whether the director considers that a prosecution should be brought.

(5) The WHS prosecutor must ensure a copy of the advice mentioned in subsection (4) is given to—

(a) the applicant; and

(b) the person who the applicant believes committed the offence.

(6) If the WHS prosecutor declines to follow the advice of the director of public prosecutions to bring proceedings, the WHS prosecutor must give written reasons for the decision to any person to whom a copy of the advice is given under subsection (5) .